5 F.3d 1199 (9th Cir. 1992), 86-1840, Jeffers v. Lewis

Docket Nº86-1840.
Citation5 F.3d 1199
Party NameJimmie Wayne JEFFERS, Petitioner-Appellant, v. Samuel LEWIS, Director, Arizona Department of Corrections, Donald B. Wawrzaszek, Superintendent, Arizona State Prison, Respondents-Appellees.
Case DateAugust 31, 1992
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 1199

5 F.3d 1199 (9th Cir. 1992)

Jimmie Wayne JEFFERS, Petitioner-Appellant,

v.

Samuel LEWIS, Director, Arizona Department of Corrections, Donald B.

Wawrzaszek, Superintendent, Arizona State Prison,

Respondents-Appellees.

No. 86-1840.

United States Court of Appeals, Ninth Circuit

August 31, 1992

Argued and Submitted July 24, 1991.

As Amended Sept. 17, 1993.

Page 1200

[Copyrighted Material Omitted]

Page 1201

Donald S. Klein and Frank P. Leto, Deputy Public Defenders, Pima County Public Defender's Office, Tucson, AZ, for petitioner-appellant.

Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Attorney General's Office, Tucson, AZ, for respondents-appellees.

Before: PREGERSON and CANBY, Circuit Judges, and WILSON, District Judge. [*]

AMENDED OPINION

PREGERSON, Circuit Judge:

Petitioner Jimmie Wayne Jeffers was convicted of first degree murder by an Arizona jury. After a sentencing hearing in 1978, the trial court found two aggravating circumstances and sentenced Jeffers to death. Jeffers's sentence was vacated and his case remanded for a new sentencing hearing after the Arizona Supreme Court's decision in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978). In Watson, the Arizona Supreme Court applied the principles of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which held that a sentencer in a capital proceeding cannot be restricted to the specific mitigating factors enumerated in the statute and cannot be precluded from considering any aspect of a defendant's character or background that the defendant offers as a reason to impose a sentence other than death.

At the supplementary resentencing hearing in 1980, the trial court again found two aggravating factors and again sentenced Jeffers to death. After the Arizona Supreme Court affirmed the conviction and sentence, and after exhausting his state remedies, Jeffers unsuccessfully petitioned the United States District Court for a writ of habeas corpus. Jeffers v. Ricketts, 627 F.Supp. 1334 (D.Ariz.1986). Jeffers then appealed to this court. With regard to the issues raised by Jeffers's murder conviction, we affirmed the district court's denial of the writ. With regard to the issues raised by Jeffers's sentence of death, we reversed. Jeffers v. Ricketts, 832 F.2d 476 (9th Cir.1987). The Supreme Court then reversed our ruling on the sentence, Lewis v. Jeffers, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), and returned this case to us for resolution of the sentencing issues we did not consider in our earlier opinion. Now, after considering these remaining issues regarding the constitutionality of this sentence of death, we again reverse the district court and remand for issuance of the writ.

Page 1202

I.

The Arizona capital sentencing statute requires the state trial court to preside over an evidentiary hearing on the existence of aggravating and mitigating factors. Ariz.Rev.Stat. Sec. 13-703(B). The trial court is required to make findings on the existence of any aggravating factors listed in the statute. If the trial court finds any such aggravating factor exists, it must then make findings on the existence of mitigating factors. The final step requires the trial court to impose a sentence of death if it determines that there are no mitigating factors sufficiently substantial to call for leniency.

At the time Jeffers was resentenced in 1980, the statute listed five specific mitigating factors. See Ariz.Rev.Stat. Sec. 13-703(G)(1)-(5). The statute also had been amended to include a general catch-all provision that made clear that the statutory list of mitigating factors was not exclusive. Thus, the amended statute provides that mitigating circumstances include "any factors proffered by the defendant or the state which are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant's character, propensities or record and any of the circumstances of the offense...." Ariz.Rev.Stat. Sec. 13-703(G). In this opinion, we use the label "nonstatutory mitigating factors" to refer to mitigating factors that are not specifically enumerated in subsections (G)(1)-(G)(5), but nonetheless are included in this broad catch-all provision.

On resentencing in 1980, the trial court sentenced Jeffers to death on the basis of two aggravating circumstances. First, the sentencing court found that, while committing the murder, Jeffers knowingly created a grave risk of death to another person in addition to the victim. See Ariz.Rev.Stat. Sec. 13-703(F)(3). Second, the trial court found that Jeffers committed the murder in a manner that was "especially heinous, cruel and depraved." Ariz.Rev.Stat. Sec. 13-703(F)(6). 1

On direct appeal after resentencing, the Arizona Supreme Court held that the "grave risk of death" aggravating factor did not apply to the facts of this case. State v. Jeffers, 135 Ariz. 404, 428-29, 661 P.2d 1105, 1129-30, cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983). The Arizona Supreme Court also held that the murder was not especially cruel but affirmed the finding that it was especially heinous and depraved. Id. 135 Ariz. at 429-30, 661 P.2d at 1130-31. The Arizona Supreme Court thus reversed the finding of one aggravating circumstance and modified the finding on the second. Nevertheless, instead of remanding the case to the trial court for resentencing, the Arizona Supreme Court affirmed Jeffers's sentence of death.

Jeffers maintains that the Arizona Supreme Court improperly affirmed his sentence even though it invalidated the finding of one aggravating factor and modified the finding of the second. Jeffers contends that the Arizona Supreme Court was required to remand his case for resentencing.

II.

We believe that the Supreme Court's decision in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), compels us to return this case to the Arizona courts. In Clemons, the jury sentenced the defendant to death after finding two aggravating factors and finding also that these aggravating factors outweighed the factors in mitigation. One aggravating factor, that the killing was "especially heinous, atrocious, or cruel," was unconstitutionally vague, and the jury's instruction on that factor did not include any narrowing construction. Thus, the sentence of death was based on both a valid and an invalid aggravating factor. Nevertheless, the Mississippi Supreme Court affirmed the sentence of death.

Page 1203

The Supreme Court in Clemons explained that when the decision to impose a sentence of death is based on both valid and invalid aggravating factors, a state appellate court can affirm the sentence only after conducting certain further analysis itself. First, the state appellate court might engage in some form of harmless error analysis. Clemons, 494 U.S. at 752-53, 110 S.Ct. at 1450. Second, it might carefully reweigh the mitigating evidence against the remaining valid aggravating factor or factors and conclude that the balance still required a sentence of death. Clemons, 494 U.S. at 748-49, 110 S.Ct. at 1448. The Supreme Court concluded that the opinion of the Mississippi Supreme Court did not clearly reveal that the court had undertaken either of these analyses. Because the opinion of the state supreme court was ambiguous, the Supreme Court held that the original constitutional error had not been cured.

Following the analysis in Clemons, we conclude that when the Arizona Supreme Court invalidated one aggravating factor and modified the second, it could affirm the sentence of death only after conducting a harmless error analysis or reweighing the mitigating evidence against the remaining valid aggravating factors. The opinion of the Arizona Supreme Court, however, is not sufficiently clear to enable us to determine that the court conducted the appellate reweighing described in Clemons. Nor did the Arizona Supreme Court conduct a harmless error analysis. As a consequence, the sentence of death cannot stand. Further proceedings in the Arizona courts are required.

Section A explains that Arizona is a "weighing" state in which the analytical procedures described in Clemons apply. Section B explains that there was mitigating evidence to weigh against the remaining valid aggravating factors in Jeffers's case. Section C explains that the Arizona Supreme Court did not conduct a harmless error analysis in this case. Finally, Section D explains that the opinion of the Arizona Supreme Court does not clearly reveal that the court conducted the type of appellate reweighing described in the Clemons decision.

A.

The Supreme Court has noted that aggravating circumstances differ from state to state in the role they play in the statutory procedures controlling the capital sentencing decision. See Clemons, 494 U.S. at 744-45, 110 S.Ct. at 1445-46. A "weighing" state is one in which the ultimate sentencing decision turns on weighing the statutory aggravating factors against the mitigating evidence.

When a state appellate court in a "weighing" state determines that a sentence of death is based on both valid and invalid aggravating factors, the sentence of death cannot be affirmed automatically. There must be further proceedings in the sentencing court or further analysis by the state appellate court itself. See Clemons, 494 U.S. at 754, 110 S.Ct. at 1451. 2 As the Supreme Court explained in Clemons, a state appellate court in such a situation may affirm a sentence of death only after conducting a harmless error review or reweighing the mitigating evidence against the valid aggravating factors. Arizona is a weighing state. When there is at least one aggravating factor, the Arizona statute calls for the sentencer to decide...

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    • Federal Cases United States District Courts 10th Circuit United States District Court of Colorado
    • 11 Septiembre 2006
    ...Circuit thoroughly set forth the standard for reviewing the agreements in Colorado Wild. Heartwood v. United States Forest Service, 43 5 F. 3d 1204 (10th Cir. The scope of our review under the "arbitrary or capricious" standard is narrow and we are not to substitute our judgment f......
  • 898 F.Supp. 1388 (D.Ariz. 1995), CIV-85-1647, Gerlaugh v. Lewis
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. District of Arizona
    • 10 Julio 1995
    ...relies heavily on Jeffers v. Lewis, 974 F.2d 1075 (9th Cir.1992) to support this argument. A revised version of this opinion is found at 5 F.3d 1199 (9th Cir.1992). However, the Ninth Circuit sitting en banc reversed this decision and affirmed the district court's denial of the writ of habe......
  • 65 F.3d 1483 (9th Cir. 1995), 93-99001, McKenna v. McDaniel
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 15 Septiembre 1995
    ...ultimate sentencing decision turns on weighing the statutory aggravating factors against the mitigating evidence." Jeffers v. Lewis, 5 F.3d 1199, 1203 (9th Cir.1992), rev'd on other grounds, 38 F.3d 411 (9th Cir.1994) (en banc). In a weighing state where the aggravating and mitigating ......
  • 68 F.3d 295 (9th Cir. 1995), 95-99019, Jeffers v. Lewis
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 12 Septiembre 1995
    ...an en banc court once. See Jeffers v. Ricketts, 832 F.2d 476 (9th Cir.1987), rev'd, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), 5 F.3d 1199 (9th Cir.1992), rev'd 38 F.3d 411 (9th Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1709, 131 L.Ed.2d 570 (1995). Thus, Jeffer......
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9 cases
  • High Country Citizens Alliance v. Norton, 091106 CODC, 03-WY-1712
    • United States
    • Federal Cases United States District Courts 10th Circuit United States District Court of Colorado
    • 11 Septiembre 2006
    ...Circuit thoroughly set forth the standard for reviewing the agreements in Colorado Wild. Heartwood v. United States Forest Service, 43 5 F. 3d 1204 (10th Cir. The scope of our review under the "arbitrary or capricious" standard is narrow and we are not to substitute our judgment f......
  • 898 F.Supp. 1388 (D.Ariz. 1995), CIV-85-1647, Gerlaugh v. Lewis
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Courts. 9th Circuit. District of Arizona
    • 10 Julio 1995
    ...relies heavily on Jeffers v. Lewis, 974 F.2d 1075 (9th Cir.1992) to support this argument. A revised version of this opinion is found at 5 F.3d 1199 (9th Cir.1992). However, the Ninth Circuit sitting en banc reversed this decision and affirmed the district court's denial of the writ of habe......
  • 65 F.3d 1483 (9th Cir. 1995), 93-99001, McKenna v. McDaniel
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 15 Septiembre 1995
    ...ultimate sentencing decision turns on weighing the statutory aggravating factors against the mitigating evidence." Jeffers v. Lewis, 5 F.3d 1199, 1203 (9th Cir.1992), rev'd on other grounds, 38 F.3d 411 (9th Cir.1994) (en banc). In a weighing state where the aggravating and mitigating ......
  • 68 F.3d 295 (9th Cir. 1995), 95-99019, Jeffers v. Lewis
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 12 Septiembre 1995
    ...an en banc court once. See Jeffers v. Ricketts, 832 F.2d 476 (9th Cir.1987), rev'd, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), 5 F.3d 1199 (9th Cir.1992), rev'd 38 F.3d 411 (9th Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1709, 131 L.Ed.2d 570 (1995). Thus, Jeffer......
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